What is involved in filing a complaint?
Attorneys with the Pacific Justice Institute will serve as legal counsel. They will file complaints with the organizations (Bars or state supreme courts) that license, discipline and regulate the conduct of attorneys. To have your name submitted with the complaints against the government attorneys, you must be a citizen over the age of 18 and must authorize PJI lawyers to file the complaint. In most, though not all, of the jurisdictions you will be named as a “complainant.” You participate in this by filling out an online form (approximately 1 minute).
What does it cost?
There is no cost to filing a complaint. You will not receive a bill.
Is the DOJ allowed to retaliate against me?
Is my name part of the public record?
In some jurisdictions the complaints are part of the public record. You will need to be willing to make a bold stand for justice.
What attorney licensing jurisdictions are involved?
California, Connecticut, District of Columbia, Illinois, Massachusetts, New York, Oklahoma, Pennsylvania, Texas, and Virginia. Even if you don’t live in any of these states, you can still be a part of the complaint.
What rules may have been broken?
This is a brief sampling of rules from ten different jurisdictions that the attorneys for the government are subject to.
In essence, government lawyers are rising from the table for counsel for the defendant, standing up and walking across the courtroom and sitting down at the plaintiff’s table. These attorneys are now seeking to have judgment taken against the party that they represent – the United States. In many of these cases, discovery (depositions, requests for production of documents, etc.) is ongoing or has already been closed. In others, motions to dismiss and for summary judgment have been filed. Several cases are on appeal. Government lawyers are technically still representing the defendant on the pleadings, but are advocating for the plaintiffs in the papers that they file with the courts.
This conduct is completely inconsistent with the professional standards for lawyers. Our legal system is “adversarial” in the same sense of competing teams in a sporting competition. The legal system requires counsel to be zealous advocates in representing the position of their clients. For example, the preambles to both the Oklahoma and Pennsylvania Bar rules read, “as advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”
American Bar Association model rules provide that an attorney “shall not . . .accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict.” The California Supreme Court commented that the “most egregious example” of violation of this rule is “simultaneously representing opposing parties in the same litigation.” Flatt v. Superior Court, 9 Cal. 4th 275 (1994). It is self-evident that a lawyer cannot represent both the plaintiffs and the defendants in litigation. An attornewy cannot serve two masters. Texas Bar Rule 1.06 provides quite simply, “a lawyer shall not represent opposing parties to the same litigation.” Like opposing football teams, a plaintiff and defendant have irreconcilable objectives. The District of Columbia’s Bar Rule 1.7 asserts that “a lawyer shall not advance two or more adverse positions in the same matter.” New York’s rules state that a “lawyer shall not intentionally: (1) fail to seek the objectives of the client through reasonably available means permitted by law and these Rules; or (2) prejudice or damage the client during the course of the representation.” Rule 1.1.
The actions of the DOJ flies in the face of the fundamental duty of loyalty owed to the person or entity that the lawyer represents. Virginia’s Bar Rule 1.7 explains that “loyalty to a client prohibits undertaking representation directly adverse to that client without that client's consent.”
The question is asked: What if an attorney representing the U.S. does not personally like DOMA? Can that lawyer switch sides? No. For example, Rule 1.2 of the Connecticut, Illinois and Massachusetts rules governing attorneys reads, “A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” There are some isolated parts of the country in which DOMA is not popular. For instance, there are several DOMA cases filed in San Francisco. But the lawyer’s duty to provide zealous representation of the client in the face of popular hostility under such circumstances is heightened. Stated another way, it is because a client or the client’s cause is not popular that the legal community has a duty to rise to the occasion to provide effective assistance of counsel. An explanatory comment regarding appointment of attorneys to cases from the Texas Bar Rules seems appropriate for government lawyers. “Regardless of his personal feelings, a lawyer should not decline representation because a client or a cause is unpopular or community reaction is adverse. Likewise, a lawyer should not reject tendered employment because of the personal preference of a lawyer to avoid adversary alignment against judges, other lawyers, public officials, or influential members of the community.” Comments on Rule 6.01.
That notwithstanding, if an attorney finds the views of the client so repugnant that it would interfere with the ability to render zealous professional representation, then the lawyer can withdraw from the case and other counsel can substitute in. However, a lawyer cannot switch sides in the litigation.
What is the Defense of Marriage Act (DOMA)?
The Defense of Marriage Act (DOMA) was passed by both houses of Congress by a vote of 342-67 in the House and 85-14 in the Senate. The bill was signed into law by President Clinton on September 21, 1996.
DOMA is a federal law which defines marriage for federal government purposes as between one man and one woman.
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or wife as the “legal union of one man and one woman.”
In addition, under DOMA a State need not recognize a same-sex marriage from another State.
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
Who defends DOMA in court?
More than a dozen lawsuits have been filed in federal courts contesting DOMA. The United States is typically a defendant in these cases because the constitutionality of a federal law is challenged. The Department of Justice (DOJ), headed by the Attorney General, represents the United States in this type of litigation. For years the DOJ did just that, scoring a string of victories in court. See, Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005); Smelt v. County. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005), 447 F.3d 673 (9th Cir. 2006); Hunt v. Ake, No. 04-1852 (M.D. Fla. Jan. 20, 2005); Sullivan v. Bush, No. 04-21118 (S.D. Fla. Mar. 16, 2005); In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004). But after the Attorney General informed Congress that the Department of Justice would no longer defend DOMA in court because they now assert the law is unconstitutional, there have been a series of losses. It should be noted that around eighteen cases are still in court. See, Gill v. Office of Personnel Management, 10-2207 consolidated with Massachusetts v. Dept. of Health and Human Service, No. 10-2204 (1st Cir. 2012); Pedersen v. Office of Personnel Management, No. 10-1750 (D. Conn.); Windsor v. United States, 833 F. Supp. 2d 394, 402 (S.D.N.Y. 2012); Dragovich v. U.S. Department of the Treasury, No. 10-1564, 2012 WL 1909603 (N.D. Cal. May 24, 2012); Golinski v. Office of Personnel Management, 824 F. Supp. 2d 968, 989-90 (N.D. Cal. 2012); In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011)
Did the DOJ really switch sides during ongoing litigation?
On February 23, 2011, Attorney General Eric Holder sent a letter to the Speaker of the House, John Boehner, informing him that the DOJ will not defend DOMA in court any longer. Holder, also speaking for President Obama, alleged that DOMA is not constitutional.
The question remained as to what to do with the cases still in court. There are times when a lawyer gets out of a case. When that is done, the attorney withdraws and another firm is substituted in as counsel. Initially, to his credit, the Attorney General gave Congress the opportunity to intervene in the DOMA cases to defend the law. Acting through the Bipartisan Legal Advisory Group (BLAG), that is what occurred. BLAG hired a private law firm which has been defending the law in the courts, and even has filed papers with the U.S. Supreme Court to bring final resolution to this issue.
This should have ended the DOJ’s involvement in the litigation. Shockingly, lawyers for the government stayed in the cases and began filing papers with the courts arguing against DOMA. In all but one of the cases, the Department has filed papers stating that DOMA is unconstitutional.
What are the consequences of the DOJ's conduct relating to DOMA?
There are three consequences of the DOJ’s conduct in the DOMA litigation.
1. The actions by government lawyers to switch sides while still in the crucible of litigation shatters the western concept of an adversarial legal system. If this type of conduct becomes legitimized, then a citizen will no longer have effective assistance of counsel because their attorney can betray them without suffering any consequences. The preamble to the Illinois Bar Rules for Professional conduct states: “The practice of law is a public trust. . . Lawyers therefore are responsible for . . . maintaining public confidence in the system of justice by acting competently and with loyalty to the best interests of their clients.” By switching sides while cases are ongoing, government attorneys are wounding the public’s confidence in the legal profession.
2. The actions by government attorneys also could upset the carefully crafted balance of power between the three branches of government. The President has a constitutional duty to “take care that the Laws be faithfully executed.” U.S. Const., Art. II, § 3. This is done through the Attorney General. Presidents have at times believed that decisions of the courts, and laws passed by Congress, are unconstitutional. (A president has some limited options under such circumstances. A review of these options is outside of the scope of this discussion). If the current actions of the Attorney General goes unchallenged, a dangerous precedent is set. A president could essentially veto a law long since passed by Congress. The president would use the DOJ – the largest law firm in the country – to make an appearance as defense counsel for the United States, then work with the plaintiff in a united front to overturn the law. The potential to bring irreparable harm to the case is enormous. Imagine what they could do. A lawyer could undermine written discovery or depositions by turning over privileged documents by waiving attorney-client privilege or other objections. Crucial motions to dismiss or summary judgment would not be filed, or as in the DOMA cases, the government would actually file papers in support of the plaintiff’s motions for judgment against the United States. This is no longer a hypothetical. It is happening in numerous courts across the country at the time of this writing. In sum, by directing the Attorney General to sabotage a case challenging a federal law, the executive branch would hold the power of what amounts to a constructive veto of a statute.
3. Finally, DOMA litigation sharpens the debate regarding the essence of what constitutes marriage, and by extension a family. Should the common understanding of marriage, throughout history, across cultures and the world over, remain the norm? There are two main premises for the continuance of traditional marriage. First a man and woman who would bring another human being into the world have an obligation to commit themselves through marriage to stay together and take on the monumental task of raising their own offspring in a unit called a “family.” The second premise is that families comprise the building blocks for civil society. Hence, the government has a profound interest in shaping public policy which reinforces traditional heterosexual marriage, and thus family, as normative. By switching sides in the litigation, the DOJ’s actions threaten to undermine a pro-family bill lawfully enacted by the People’s representatives and signed by the President. This alters the odds of traditional marriage surviving judicial review. For thousands of years, there has been a general understanding of what constitutes marriage and thus the family. If marriage and the family are a crucial component for society, it would be tragic if laws keeping that definition cohesive fail because of treachery by legal counsel.
Who are the attorneys? What are the cases?
There are thirty-three government attorneys who have joined sides with plaintiffs against their client. As a result of the actions of government lawyers in the DOMA cases, the filing of complaints is necessary. Complaints will be filed with the attorney disciplinary bodies having jurisdiction as follows: California, Connecticut, District of Columbia, Illinois, Massachusetts, New York, Oklahoma, Pennsylvania, Texas, and Virginia. The complaints will include court filings which raise profound concerns that violations of the rules of professional conduct have occurred. The complaints will ask for an investigation and, if rules were violated, that appropriate disciplinary actions be initiated against offending lawyers.
Click here to see a complete listing of attorneys/cases.
What can we do?
The Pacific Justice Institute is taking action to give the American people a voice in defense of DOMA. We are filing official complaints with the state bars and disciplinary boards of every jurisdiction where these government lawyers are licensed. Join the thousands standing up to the DOJ and demanding that your lawyers not treat you like their opponents!
Will you make a bold statement for justice? Add your name to the official complaints filed against these government lawyers!